esa-1973

Endangered Species Act of 1973

[Color coded section format: Sec.2,3,4.. (a,b,c...) (1,2,3...) (A,B,C...) (i,ii,iii...) (I,II,III...)]

ESA SECTION HEADINGS

Sec 2 Findings, purposes, and policy

Sec. 3. Definitions

Sec 4. Determination of endangered species and threatened species

Sec 5. Land acquisition

Sec. 6. Cooperation with the States

Sec. 7. Interagency cooperation

Sec. 8 International cooperation

Sec 8A. Convention implementation

Sec. 9. Prohibited acts

Sec. 10. Exceptions

See 11 Penalties and enforcement

See 12 Endangered plants

Sec. 13. Conforming amendments

Sec. 14. Repealer

Sec 15 Authorization of appropriations

Sec 16. Effective date

Sec. 17. Marine Mammal Protection Act of 1972

Sec. 18. Annual cost analysis by the Fish and Wildlife Service

FINDINGS, PURPOSES, AND POLICY

SEC. 2.

(a) FINDINGS.-The Congress finds and declares that-

(1) various species of fish, wildlife, and plants in the United States have been rendered

extinct as a consequence of economic growth and development untempered by adequate

concern and conservation;

(2) other species of fish, wildlife, and plants have been so depleted in numbers that they

are in danger of or threatened with extinction;

(3) these species of fish, wildlife, and plants are of aesthetic, ecological, educational,

historical, recreational, and scientific value to the Nation and its people;

(4) the United States has pledged itself as a sovereign state in the international

community to conserve to the extent practicable the various species of fish or wildlife and plants facing extinction, pursuant to-

(A) migratory bird treaties with Canada and Mexico;

(B) the Migratory and Endangered Bird Treaty with Japan;

Hemisphere;

(D) the International Convention for the Northwest Atlantic Fisheries;

(E) the International Convention for the High Seas Fisheries of the North Pacific Ocean;

(F) the Convention on International Trade in Endangered Species of Wild Fauna and

Flora; and

(G) other international agreements; and

(5) encouraging the States and other interested parties, through Federal financial

assistance and a system of incentives, to develop and maintain conservation programs

which meet national and international standards is a key to meeting the Nation's

international commitments and to better safeguarding, for the benefit of all citizens, the

Nation's heritage in fish, wildlife, and plants.

(b) PURPOSES.-The purposes of this Act are to provide a means whereby the ecosystems

upon which endangered species and threatened species depend may be conserved, to

provide a program for the conservation of such endangered species and threatened species,

and to take such steps as may be appropriate to achieve the purposes of the treaties and

conventions set forth in subsection (a) of this section.

(1) It Is further declared to be the policy of Congress that all Federal departments and

agencies shall seek to conserve endangered species and threatened species and shall utilize

their authorities in furtherance of the purposes of this Act.

(2) It is further declared to be the policy of Congress that Federal agencies shall

cooperate with State and local agencies to resolve water resource issues in concert with

conservation of endangered species.

DEFINITIONS

SEC. 3.

For the purposes of this Act-

(1) The term "alternative courses of action" means all alternatives and thus is not limited

to original project objectives and agency jurisdiction.

(2) The term "commercial activity" means all activities of industry and trade, including,

but not limited to, the buying or selling of commodities and activities conducted for the

purpose of facilitating such buying and selling: Provided, however, that it does not include

exhibitions of commodities by museums or similar cultural or historical organizations.

(3) The terms "conserve," "conserving," and "conservation" mean to use and the use of

all methods and procedures which are necessary to bring any endangered species or

threatened species to the point at which the measures provided pursuant to this Act are

no longer necessary. Such methods and procedures include, but are not limited to, all

activities associated with scientific resources management such as research, census, law

enforcement, habitat acquisition and maintenance, propagation, live trapping, and trans-

plantation, and, in the extraordinary case where population pressures within a given

ecosystem cannot be otherwise relieved, may include regulated taking.

(4) The term "Convention" means the Convention on International Trade in

Endangered Species of Wild Fauna and Flora, signed on March 3, 1973, and the

appendices thereto.

(5)(A) The term "critical habitat" for a threatened or endangered species means-

(i) the specific areas within the geographical area occupied by the species, at the time

it is listed in accordance with the provisions of section 4 of this Act, on which are found

those physical or biological features (I) essential to the conservation of the species and (II)

which may require special management considerations or protection; and

(ii) specific areas outside the geographical area occupied by the species at the time it is

listed in accordance with the provisions of section 4 of this Act, upon a determination by

the Secretary that such areas are essential for the conservation of the species.

(B) Critical habitat may be established for those species now listed as threatened or

endangered species for which no critical habitat has heretofore been established as set forth

in subparagraph (A) of this paragraph.

include the entire geographical area which can be occupied by the threatened or endangered

species.

(6) The term "endangered species" means any species which is in danger of extinction

throughout all or a significant portion of its range other than a species of the Class Insecta

determined by the Secretary to constitute a pest whose protection under the provisions of

this Act would present an overwhelming and overriding risk to man.

(7) The term "Federal agency" means any department, agency, or instrumentality of the

United States.

(8) The term "fish or wildlife" means any member of the animal kingdom, including

without limitation any mammal, fish, bird (including any migratory, nonmigratory, or

endangered bird for which protection is also afforded by treaty or other international

agreement), amphibian, reptile, mollusk, crustacean, arthropod or other invertebrate, and

includes any part, product, egg, or offspring thereof, or the dead body or parts thereof.

(9) The term "foreign commerce" includes, among other things, any transaction-

(A) between persons within one foreign country;

(B) between persons in two or more foreign countries;

(D) between persons within the United States, where the fish and wildlife in question are

moving in any country or countries outside the United States.

(10) The term "import" means to land on, bring into, or introduce into, or attempt to land

on, bring into, or introduce into, any place subject to the jurisdiction of the United States,

whether or not such landing, bringing, or introduction constitutes an importation within the

meaning of the customs laws of the United States.

(11) The term "permit or license applicant" means, when used with respect to an action

of a Federal agency for which exemption is sought under section 7, any person whose

application to such agency for a permit or license has been denied primarily because of the

application of section 7(a) to such agency action.

(12) "The term person means an individual, corporation, partnership, trust, association,

or any other private entity; or any officer, employee, agent, department, or instrumentality

of the Federal Government, of any State, municipality, or political subdivision of a State,

or of any foreign government; any State, municipality, or political subdivision of a State;

or any other entity subject to the jurisdiction of the United States."

(13) The term "plant" means any member of the plant kingdom, including seeds, roots

and other parts thereof.

(14) The term "Secretary" means, except as otherwise herein provided, the Secretary of

the Interior or the Secretary of Commerce as program responsibilities are vested pursuant

to the provisions of Reorganization Plan Numbered 4 of 1970; except that with respect to

the enforcement of the provisions of this Act and the Convention which pertain to the

importation or exportation of terrestrial plants, the term also means the Secretary of

Agriculture.

(15) The term "species" includes any subspecies of fish or wildlife or plants, and any

distinct population segment of any species or vertebrate fish or wildlife which interbreeds

when mature.

(16) The term "State" means any of the several States, the District of Columbia, the

Commonwealth of Puerto Rico, American Samoa, the Virgin Islands, Guam, and the Trust

Territory of the Pacific Islands.

(17) The term "State agency" means any State agency, department, board, commission,

or other governmental entity which is responsible for the management and conservation of

fish, plant, or wildlife resources within a State.

(18) The term "take" means to harass, harm, pursue, hunt, shoot, wound, kill, trap,

capture, or collect, or to attempt to engage in any such conduct.

(19) The term "threatened species" means any species which is likely to become an

endangered species within the foreseeable future throughout all or a significant portion of

its range.

(20) The term "United States," when used in a geographical context, includes all States.

DETERMINATION OF ENDANGERED SPECIES AND
THREATENED SPECIES

Sec. 4.

(a) GENERAL.-

(1) The Secretary shall by regulation promulgated in accordance with subsection (b)

determine whether any species is an endangered species or a threatened species because of

any of the following factors:

(A) the present or threatened destruction, modification, or curtailment of its habitat or

range;

(B) overutilization for commercial, recreational, scientific, or educational purposes;

(D) the inadequacy of existing regulatory mechanisms;

(E) other natural or manmade factors affecting its continued existence.

(2) With respect to any species over which program responsibilities have been vested in

the Secretary of Commerce pursuant to Reorganization Plan Numbered 4 of 1970-

(A) in any case in which the Secretary of Commerce determines that such species

should-

(i) be listed as an endangered species or a threatened species, or

(ii) be changed in status from a threatened species to an endangered species, he shall

so inform the Secretary of the Interior, who shall list such species in accordance with this

section;

(B) in any case in which the Secretary of Commerce determines that such species

should-

(i) be removed from any list published pursuant to subsection (c) of this section, or

(ii) be changed in status from an endangered species to a threatened species, he shall

recommend such action to the Secretary of the Interior, and the Secretary of the Interior, if

he concurs in the recommendation, shall implement such action; and

and may not change the status of any such species which are listed, without a prior

favorable determination made pursuant to this section by the Secretary of Commerce.

(3) The Secretary, by regulation promulgated in accordance with subsection (b) and to the

maximum extent prudent and determinable-

(A) shall, concurrently with making a determination under paragraph (1) that a species

is an endangered species or a threatened species, designate any habitat of such species

which is then considered to be critical habitat; and

(B) may, from time-to-time thereafter as appropriate, revise such designation.

(b) BASIS FOR DETERMINATIONS.-

(1)(A) The Secretary shall make determinations required by subsection (a)(1) solely on

the basis of the best scientific and commercial data available to him after conducting a

review of the status of the species and after taking into account those efforts, if any, being

made by any State or foreign nation, or any political subdivision of a State or foreign

nation, to protect such species, whether by predator control, protection of habitat and food

supply, or other conservation practices, within any area under its jurisdiction, or on the

high seas.

(B) In carrying out this section, the Secretary shall give consideration to species which

have been-

(i) designated as requiring protection from unrestricted commerce by any foreign

nation, or pursuant to any international agreement; or

(ii) identified as in danger of extinction, or likely to become so within the foreseeable

future, by any State agency or by any agency of a foreign nation that is responsible for the

conservation of fish or wildlife or plants.

(2) The Secretary shall designate critical habitat, and make revisions thereto, under

subsection (a)(3) on the basis of the best scientific data available and after taking into

consideration the economic impact, and any other relevant impact, of specifying any

particular area as critical habitat. The Secretary may exclude any area from critical habitat

if he determines that the benefits of such exclusion outweigh the benefits of specifying such

area as part of the critical habitat, unless he determines, based on the best scientific and

commercial data available, that the failure to designate such area as critical habitat will

result in the extinction of the species concerned.

(3)(A) To the maximum extent practicable, within 90 days after receiving the petition of

an interested person under section 553(e) of title 5, United States Code, to add a species to,

or to remove a species from, either of the lists published under subsection (c), the

Secretary shall make a finding as to whether the petition presents substantial scientific or

commercial information indicating that the petitioned action may be warranted. If such a

petition is found to present such information, the Secretary shall promptly commence a

review of the status of the species concerned. The Secretary shall promptly publish each

finding made under this subparagraph in the Federal Register.

(B) Within 12 months after receiving a petition that is found under subparagraph (A) to

present substantial information indicating that the petitioned action may be warranted, the

Secretary shall make one of the following findings:

(i) The petitioned action is not warranted, in which case the Secretary shall promptly

publish such finding in the Federal Register.

(ii) The petitioned action is warranted in which case the Secretary shall promptly

publish in the Federal Register a general notice and the complete text of a proposed

regulation to implement such action in accordance with paragraph (5).

(iii) The petitioned action is warranted but that-

(I) the immediate proposal and timely promulgation of a final regulation implementing

the petitioned action in accordance with paragraphs (5) and (6) is precluded by pending

proposals to determine whether any species is an endangered species or a threatened

species, and

(II) expeditious progress is being made to add qualified species to either of the lists

published under subsection (c) and to remove from such lists species for which the protec-

tions of the Act are no longer necessary, in which case the Secretary shall promptly publish

such finding in the Federal Register, together with a description and evaluation of the

reasons and data on which the finding is based.

(C)(i) A petition with respect to which a finding is made under subparagraph (B)(iii) shall

be treated as a petition that is resubmitted to the Secretary under subparagraph (A) on the

date of such finding and that presents substantial scientific or commercial information that

the petitioned action may be warranted.

(ii) Any negative finding described in subparagraph (A) and any finding described in

subparagraph (B) (i) or (iii) shall be subject to judicial review.

(iii) The Secretary shall implement a system to monitor effectively the status of all

species with respect to which a finding is made under subparagraph (B)(iii) and shall make

prompt use of the authority under paragraph 7 to prevent a significant risk to the well being

of any such species.

(D)(i) To the maximum extent practicable, within 90 days after receiving the petition of

an interested person under section 553(e) of title 5, United States Code, to revise a critical

habitat designation, the Secretary shall make a finding as to whether the petition presents

substantial scientific information indicating that the revision may be warranted. The

Secretary shall promptly publish such finding in the Federal Register.

(ii) Within 12 months after receiving a petition that is found under clause (i) to present

substantial information indicating that the requested revision may be warranted, the

Secretary shall determine how he intends to proceed with the requested revision, and shall

promptly publish notice of such intention in the Federal Register.

(4) Except as provided in paragraphs (5) and (6) of this subsection, the provisions of

section 553 of title 5, United States Code (relating to rulemaking procedures), shall apply

to any regulation promulgated to carry out the purposes of this Act.

(5) With respect to any regulation proposed by the Secretary to implement a

determination, designation, or revision referred to in subsection (a) (1) or (3), the Secretary

shall-

(A) not less than 90 days before the effective date of the regulation-

(i) publish a general notice and the complete text of the proposed regulation in the

Federal Register, and

(ii) give actual notice of the proposed regulation (including the complete text of the

regulation) to the State agency in each State in which the species is believed to occur, and

to each county or equivalent jurisdiction in which the species is believed to occur, and

invite the comment of such agency, and each such jurisdiction, thereon;

(B) insofar as practical, and in cooperation with the Secretary of State, give notice of the

proposed regulation to each foreign nation in which the species is believed to occur or

whose citizens harvest the species on the high seas, and invite the comment of such nation

thereon;

he deems appropriate;

(D) publish a summary of the proposed regulation in a newspaper of general circulation

in each area of the United States in which the species is believed to occur; and

(E) promptly hold one public hearing on the proposed regulation if any person files a

request for such a hearing within 45 days after the date of publication of general notice.

(6)(A) Within the one-year period beginning on the date on which general notice is

published in accordance with paragraph (5)(A)(i) regarding a proposed regulation, the

Secretary shall publish in the Federal Register-

(i) if a determination as to whether a species is an endangered species or a threatened

species, or a revision of critical habitat, is involved, either-

(I) a final regulation to implement such determination,

(II) a final regulation to implement such revision or a finding that such revision

should not be made,

(III) notice that such one-year period is being extended under subparagraph (B)(i), or

(IV) notice that the proposed regulation is being withdrawn under subparagraph

(B)(ii), together with the finding on which such withdrawal is based; or

(ii) subject to subparagraph (C), if a designation of critical habitat is involved, either-

(I) a final regulation to implement such designation, or

(II) notice that such one-year period is being extended under such subparagraph.

(B)(i) If the Secretary finds with respect to a proposed regulation referred to in

subparagraph (A)(i) that there is substantial disagreement regarding the sufficiency or

accuracy of the available data relevant to the determination or revision concerned the

Secretary may extend the one-year period specified in subparagraph (A) for not more than

six months for purposes of soliciting additional data.

(ii) If a proposed regulation referred to in subparagraph (a)(i) is not promulgated as a

final regulation within such one-year period (or longer period if extension under clause (i)

applies) because the Secretary finds that there is not sufficient evidence to justify the action

proposed by the regulation the Secretary shall immediately withdraw the regulation. The

finding on which a withdrawal is based shall be subject to judicial review. The Secretary

may not propose a regulation that has previously been withdrawn under this clause unless

he determines that sufficient new information is available to warrant such proposal.

(iii) If the one-year period specified in subparagraph (A) is extended under clause (i)

with respect to a proposed regulation, then before the close of such extended period the

Secretary shall publish in the Federal Register either a final regulation to implement the

determination or revision concerned, a finding that the revision should not be made, or a

notice of withdrawal of the regulation under clause (ii), together with the finding on which

the withdrawal is based.

threatened species shall be published concurrently with the final regulation implementing

the determination that such species is endangered or threatened, unless the Secretary deems

that-

(i) it is essential to the conservation of such species that the regulation implementing

such determination be promptly published; or

(ii) critical habitat of such species is not then determinable, in which case the

Secretary, with respect to the proposed regulation to designate such habitat, may extend the

one-year period specified in subparagraph (A) by not more than one additional year, but

not later than the close of such additional year the Secretary must publish a final

regulation, based on such data as may be available at that time, designating, to the

maximum extent prudent, such habitat.

(7) Neither paragraph (4), (5), or (6) of this subsection nor section 553 of title 5, United

States Code, shall apply to any regulation issued by the Secretary in regard to any

emergency posing a significant risk to the well-being of any species of fish and wildlife or

plants, but only if-

(A) at the time of publication of the regulation in the Federal Register the Secretary

publishes therein detailed reasons why such regulation is necessary; and

(B) in the case such regulation applies to resident species of fish or wildlife, or plants,

the Secretary gives actual notice of such regulation to the State agency in each State in

which such species is believed to occur.

Such regulation shall, at the discretion of the Secretary, take effect immediately upon the

publication of the regulation in the Federal Register. Any regulation promulgated under

the authority of this paragraph shall cease to have force and effect at the close of the

240-day period following the date of publication unless, during such 240-day period, the

rulemaking procedures which would apply to such regulation without regard to this

paragraph are complied with. If at any time after issuing an emergency regulation the

Secretary determines, on the basis of the best appropriate data available to him, that

substantial evidence does not exist to warrant such regulation, he shall withdraw it.

(8) The publication in the Federal Register of any proposed or final regulation which is

necessary or appropriate to carry out the purposes of this Act shall include a summary by

the Secretary of the data on which such regulation is based and shall show the relationship

of such data to such regulation; and if such regulation designates or revises critical habitat,

such summary shall, to the maximum extent practicable, also include a brief description

and evaluation of those activities (whether public or private) which, in the opinion of the

Secretary, if undertaken may adversely modify such habitat, or may be affected by such

designation.

(1) The Secretary of the Interior shall publish in the Federal Register a list of all species

determined by him or the Secretary of Commerce to be endangered species and a list of all

species determined by him or the Secretary of Commerce to be threatened species. Each

list shall refer to the species contained therein by scientific and common name or names, if

any, specify with respect to such species over what portion of its range it is endangered or

threatened, and specify any critical habitat within such range. The Secretary shall from

time to time revise each list published under the authority of this subsection to reflect

recent determinations, designations, and revisions made in accordance with subsections (a)

and (b).

(2) The Secretary shall-

(A) conduct, at least once every five years, a review of all species included in a list

which is published pursuant to paragraph (1) and which is in effect at the time of such

review; and

(B) determine on the basis of such review whether any such species should-

(i) be removed from such list;

(ii) be changed in status from an endangered species to a threatened species; or

(iii) be changed in status from a threatened species to an endangered species.

Each determination under subparagraph (B) shall be made in accordance with the

provisions of subsection (a) and (b).

(d) PROTECTIVE REGULATIONS.-Whenever any species is listed as a threatened

species pursuant to subsection (c) of this section, the Secretary shall issue such regulations

as he deems necessary and advisable to provide for the conservation of such species. The

Secretary may by regulation prohibit with respect to any threatened species any act

prohibited under section 9(a)(1), in the case of fish or wildlife, or section 9(a)(2), in the

case of plants, with respect to endangered species; except that with respect to the taking of

resident species of fish or wildlife, such regulations shall apply in any State which has

entered into a cooperative agreement pursuant to section 6(c) of this Act only to the extent

that such regulations have also been adopted by such State.

(e) SIMILARITY OF APPEARANCE CASES.-The Secretary may, by regulation of

commerce or taking, and to the extent he deems advisable, treat any species as an

endangered species or threatened species even though it is not listed pursuant to section 4

of this Act if he finds that-

(A) such species so closely resembles in appearance, at the point in question, a species

which has been listed pursuant to such section that enforcement personnel would have

substantial difficulty in attempting to differentiate between the listed and unlisted species;

(B) the effect of this substantial difficulty is an additional threat to an endangered or

threatened species; and

further the policy of this Act.

(f)(1) RECOVERY PLANS.-The Secretary shall develop and implement plans (hereinafter

in this subsection referred to as "recovery plans") for the conservation and survival of

endangered species and threatened species listed pursuant to this section, unless he finds

that such a plan will not promote the conservation of the species. The Secretary, in

development and implementing recovery plans, shall, to the maximum extent practicable-

(A) give priority to those endangered species or threatened species, without regard to

taxonomic classification, that are most likely to benefit from such plans, particularly those

species that are, or may be, in conflict with construction or other development projects or

other forms of economic activity;

(B) incorporate in each plan-

(i) a description of such site-specific management actions as may be necessary to

achieve the plan's goal for the conservation and survival of the species;

(ii) objective, measurable criteria which, when met, would result in a determination, in

accordance with the provisions of this section, that the species be removed from the list;

and

(iii) estimates of the time required and the cost to carry out those measures needed to

achieve the plan's goal and to achieve intermediate steps toward that goal.

(2) The Secretary, in developing and implementing recovery plans, may procure the

services of appropriate public and private agencies and institutions, and other qualified

persons. Recovery teams appointed pursuant to this subsection shall not be subject to the

Federal Advisory Committee Act.

(3) The Secretary shall report every two years to the Committee on Environment and

Public Works of the Senate and the Committee on Merchant Marine and Fisheries of the

House of Representatives on the status of efforts to develop and implement recovery plans

for all species listed pursuant to this section and on the status of all species for which such

plans have been developed.

(4) The Secretary shall, prior to final approval of a new or revised recovery plan, provide

public notice and an opportunity for public review and comment on such plan. The

Secretary shall consider all information presented during the public comment period prior

to approval of the plan.

(5) Each Federal agency shall, prior to implementation of a new or revised recovery plan,

consider all information presented during the public comment period under paragraph (4).

(g) MONITORING.-

(1) The Secretary shall implement a system in cooperation with the States to monitor

effectively for not less than five years the status of all species which have recovered to the

point at which the measures provided pursuant to this Act are no longer necessary and

which, in accordance with the provisions of this section, have been removed from either of

the lists published under subsection (c).

(2) The Secretary shall make prompt use of the authority under paragraph 7 of subsection

(b) of this section to prevent a significant risk to the well being of any such recovered

species.

(h) AGENCY GUIDELINES.-The Secretary shall establish, and publish in the Federal

efficiently and effectively. Such guidelines shall include, but are not limited to-

(1) procedures for recording the receipt and the disposition of petitions submitted under

subsection (b)(3) of this section;

(2) criteria for making the findings required under such subsection with respect to

petitions;

(3) a ranking system to assist in the identification of species that should receive priority

review under subsection (a)(1) of the section; and

(4) a system for developing and implementing, on a priority basis, recovery plans under

subsection (f) of this section. The Secretary shall provide to the public notice of, and

opportunity to submit written comments on, any guideline (including any amendment

thereto) proposed to be established under this subsection.

(i) If, in the case of any regulation proposed by the Secretary under the authority of this

section, a State agency to which notice thereof was given in accordance with subsection

(b)(5)(A)(ii) files comments disagreeing with all or part of the proposed regulation, and the

Secretary issues a final regulation which is in conflict with such comments, or if the

Secretary fails to adopt a regulation pursuant to an action petitioned by a State agency

under subsection (b)(3), the Secretary shall submit to the State agency a written justification

for his failure to adopt regulations consistent with the agency's comments or petition.

LAND ACQUISITION

SEC. 5.

(a) PROGRAM.-The Secretary, and the Secretary of Agriculture with respect to the

National Forest System, shall establish and implement a program to conserve fish, wildlife,

and plants, including those which are listed as endangered species or threatened species

pursuant to section 4 of this Act. To carry out such a program, the appropriate Secretary-

(1) shall utilize the land acquisition and other authority under the Fish and Wildlife Act of

1956, as amended, the Fish and Wildlife Coordination Act, as amended, and the Migratory

Bird Conservation Act, as appropriate; and

(2) is authorized to acquire by purchase, donation, or otherwise, lands, waters, or interest

therein, and such authority shall be in addition to any other land acquisition vested in him.

(b) ACQUISITIONS.-Funds made available pursuant to the Land and Water Conservation

Fund Act of 1965, as amended, may be used for the purpose of acquiring lands, waters, or

interests therein under subsection (a) of this section.

COOPERATION WITH THE STATES

SEC. 6.

(a) GENERAL.-In carrying out the program authorized by this Act, the Secretary shall

cooperate to the maximum extent practicable with the States. Such cooperation shall

include consultation with the States concerned before acquiring any land or water, or

interest therein, for the purpose of conserving any endangered species or threatened

species.

(b) MANAGEMENT AGREEMENTS.-The Secretary may enter into agreements with any

State for the administration and management of any area established for the conservation of

endangered species or threatened species. Any revenues derived from the administration of

such areas under these agreements shall be subject to the provisions of section 401 of the

Act of June 15, 1935 (49 Stat. 383; 16 U.S.C. 715s).

(c)(1) COOPERATIVE AGREEMENTS.-In furtherance of the purposes of this Act, the

Secretary is authorized to enter into a cooperative agreement in accordance with this

section with any State which establishes and maintains an adequate and active program for

the conservation of endangered species and threatened species. Within one hundred and

twenty days after the Secretary receives a certified copy of such a proposed State program,

he shall make a determination whether such program is in accordance with this Act.

Unless he determines, pursuant to this paragraph, that the State program is not in

accordance with this Act, he shall enter into a cooperative agreement with the State for the

purpose of assisting in implementation of the State program. In order for a State program

to be deemed an adequate and active program for the conservation of endangered species

and threatened species, the Secretary must find, and annually thereafter reconfirm such

finding, that under the State program-

(A) authority resides in the State agency to conserve resident species of fish or wildlife

determined by the State agency or the Secretary to be endangered or threatened;

(B) the State agency has established acceptable conservation programs, consistent with

the purposes and policies of this Act, for all resident species of fish or wildlife in the State

which are deemed by the Secretary to be endangered or threatened, and has furnished a

copy of such plan and program together with all pertinent details, information, and data

requested to the Secretary;

requirements for survival of resident species of fish and wildlife;

(D) the State agency is authorized to establish programs, including the acquisition of land

or aquatic habitat or interests therein, for the conservation of resident endangered or threat-

ened species of fish or wildlife; and

(E) provision is made for public participation in designating resident species of fish or

wildlife as endangered or threatened, or that under the State program-

(i) the requirements set forth in paragraphs (3), (4), and (5) of this subsection are

complied with, and

(ii) plans are included under which immediate attention will be given to those resident

species of fish and wildlife which are determined by the Secretary or the State agency to be

endangered or threatened and which the Secretary and the State agency agree are most

urgently in need of conservation programs; except that a cooperative agreement entered

into with a State whose program is deemed adequate and active pursuant to clause (i) and

this clause and this subparagraph shall not affect the applicability of prohibitions set forth

in or authorized pursuant to section 4(d) or section 9(a)(1) with respect to the taking of any

resident endangered or threatened species.

(2) In furtherance of the purposes of this Act, the Secretary is authorized to enter into a

cooperative agreement in accordance with this section with any State which establishes and

maintains an adequate and active program for the conservation of endangered species and

threatened species of plants. Within one hundred and twenty days after the Secretary

receives a certified copy of such a proposed State program, he shall make a determination

whether such program is in accordance with this Act. Unless he determines, pursuant to

this paragraph, that the State program is not in accordance with this Act, he shall enter into

a cooperative agreement with the State for the purpose of assisting in implementation of the

State program. In order for a State program to be deemed an adequate and active program

for the conservation of endangered species of plants and threatened species of plants, the

Secretary must find, and annually thereafter reconfirm such finding, that under the State

program-

(A) authority resides in the State agency to conserve resident species of plants

determined by the State agency or the Secretary to be endangered or threatened;

(B) the State agency has established acceptable conservation programs, consistent with

the purposes and policies of this Act, for all resident species of plants in the State which

are deemed by the Secretary to be endangered or threatened, and has furnished a copy of

such plan and program together with all pertinent details, information, and data requested

to the Secretary;

requirements for survival of resident species of plants; and

(D) provision is made for public participation in designating resident species of plants as

endangered or threatened; or that under the State program-

(i) the requirements set forth in subparagraphs (C) and (D) of this paragraph are

complied with, and

(ii) plans are included under which immediate attention will be given to those resident

species of plants which are determined by the Secretary or the State agency to be

endangered or threatened and which the Secretary and the State agency agree are most

urgently in need of conservation programs; except that a cooperative agreement entered

into with a State whose program is deemed adequate and active pursuant to clause (i) and

this clause shall not affect the applicability of prohibitions set forth in or authorized

pursuant to section 4(d) or section 9(a)(1) with respect to the taking of any resident

endangered or threatened species.

(d) ALLOCATION OF FUNDS.-

(1) The Secretary is authorized to provide financial assistance to any State, through its

respective State agency, which has entered into a cooperative agreement pursuant to

subsection (c) of this section to assist in development of programs for the conservation of

endangered and threatened species or to assist in monitoring the status of candidate species

pursuant to subparagraph (C) of section 4(b)(3) and recovered species pursuant to section

4(g). The Secretary shall allocate each annual appropriation made in accordance with the

provisions of subsection (i) of this section to such States based on consideration of-

(A) the international commitments of the United States to protect endangered species or

threatened species;

(B) the readiness of a State to proceed with a conservation program consistent with the

objectives and purposes of this Act;

(D) the potential for restoring endangered species and threatened species within a State;

(E) the relative urgency to initiate a program to restore and protect an endangered

species or threatened species in terms of survival of the species;

(F) the importance of monitoring the status of candidate species within a State to prevent

a significant risk to the well being of any such species; and

(G) the importance of monitoring the status of recovered species within a State to assure

that such species do not return to the point at which the measures provided pursuant to this

Act are again necessary.

So much of the annual appropriation made in accordance with provisions of subsection (i)

of this section allocated for obligation to any State for any fiscal year as remains

unobligated at the close thereof is authorized to fie made available to that State until the

close of the succeeding fiscal year. Any amount allocated to any State which is

unobligated at the end of the period during which it is available for expenditure is

authorized to be made available for expenditure by the Secretary in conducting programs

under this section.

(2) Such cooperative agreements shall provide for-

(A) the actions to be taken by the Secretary and the States;

(B) the benefits that are expected to be derived in connection with the conservation of

endangered or threatened species;

(D) the share of such costs to be borne by the Federal Government and by the States;

except that-

(i) the Federal share of such program costs shall not exceed 75 percent of the estimated

program cost stated in the agreement; and

(ii) the Federal share may be increased to 90 percent whenever two or more States

having a common interest in one or more endangered or threatened species, the

conservation of which may be enhanced by cooperation of such States, enter jointly into

agreement with the Secretary.

The Secretary may, in his discretion, and under such rules and regulations as he may

prescribe, advance funds to the State for financing the United States pro rata share agreed

upon in the cooperative agreement. For the purposes of this section, the non-Federal share

may, in the discretion of the Secretary, be in the form of money or real property, the value

of which will be determined by the Secretary whose decision shall be final.

(e) REVIEW OF STATE PROGRAMS.-Any action taken by the Secretary under this

section shall be subject to his periodic review at no greater than annual intervals.

(f) CONFLICTS BETWEEN FEDERAL AND STATE LAWS.-Any State law or

regulation which applies with respect to the importation or exportation of, or interstate or

foreign commerce in, endangered species or threatened species is void to the extent that it

may effectively

(1) permit what is prohibited by this Act of by any regulation which implements this Act,

(2) prohibit what is authorized pursuant to an exemption or permit provided for in this

Act or in any regulation which implements this Act. This Act shall not otherwise be

construed to void any State law or regulation which is intended to conserve migratory,

resident, or introduced fish or wildlife, or to permit or prohibit sale of such fish or

wildlife. Any State law or regulation respecting the taking of an endangered species or

threatened species may be more restrictive than the exemptions or permits provided for in

this Act or in any regulation which implements this Act but not less restrictive than the

prohibitions so defined.

(g) TRANSITION.-

(1) For purposes of this subsection, the term "establishment period" means, with respect

to any State, the period beginning on the date of enactment of this Act and ending on

whichever of the following dates first occurs:

(A) the date of the close of the 120-day period following the adjournment of the first

regular session of the legislature of such State which commences after such date of

enactment, or

(B) the date of the close of the 15 month period following such date of enactment.

(2) The prohibitions set forth in or authorized pursuant to sections 4(d) and 9(a)(1)(B) of

this Act shall not apply with respect to the taking of any resident endangered species or

threatened species (other than species listed in Appendix I to the Convention or otherwise

specifically covered by any other treaty or Federal law) within any State-

(A) which is then a party to a cooperative agreement with the Secretary pursuant to

section 6(c) of this Act (except to the extent that the taking of any such species is contrary

to the law of such State); or

(B) except for any time within the establishment period when-

(i) the Secretary applies such prohibition to such species at the request of the State, or

(ii) the Secretary applies such prohibition after he finds, and publishes his finding, that

an emergency exists posing a significant risk to the well-being of such species and that the

prohibition must be applied to protect such species. The Secretary's finding and

publication may be made without regard to the public hearing or comment provisions of

section 553 of title 5, United States Code, or any other provision of this Act; but such

prohibition shall expire 90 days after the date of its imposition unless the Secretary further

extends such prohibition by publishing notice and a statement of justification of such

extension.

(h) REGULATIONS.-The Secretary is authorized to promulgate such regulations as may

be appropriate to carry out the provisions of this section relating to financial assistance to

States.

(i) APPROPRIATIONS.-

(1) To carry out the provisions of this section for fiscal years after September 30, 1988,

there shall be deposited into a special fund known as the cooperative endangered species

conservation fund, to be administered by the Secretary, an amount equal to five percent of

the combined amounts covered each fiscal year into the Federal aid to wildlife restoration

fund under section 3 of the Act of September 2, 1937, and paid, transferred, or otherwise

credited each fiscal year to the Sport Fishing Restoration Account established under 1016

of the Act of July 18, 1984.

(2) Amounts deposited into the special fund are authorized to be appropriated annually

and allocated in accordance with subsection (d) of this section.

INTERAGENCY COOPERATION

SEC. 7.

(a) FEDERAL AGENCY ACTIONS AND CONSULTATIONS.-

(1) The Secretary shall review other programs administered by him and utilize such

programs in furtherance of the purposes of this Act. All other Federal agencies shall, in

consultation with and with the assistance of the Secretary, utilize their authorities in

furtherance of the purposes of this Act by carrying out programs for the conservation of

endangered species and threatened species listed pursuant to section 4 of this Act.

(2) Each Federal agency shall, in consultation with and with the assistance of the

Secretary, insure that any action authorized, funded, or carried out by such agency

(hereinafter in this section referred to as an "agency action") is not likely to jeopardize the

continued existence of any endangered species or threatened species or result in the

destruction or adverse modification of habitat of such species which is determined by the

Secretary, after consultation as appropriate with affected States, to be critical, unless such

agency has been granted an exemption for such action by the Committee pursuant to

subsection (h) of this section. In fulfilling the requirements of this paragraph each agency

shall use the best scientific and commercial data available.

(3) Subject to such guidelines as the Secretary may establish, a Federal agency shall

consult with the Secretary on any prospective agency action at the request of, and in

cooperation with, the prospective permit or license applicant if the applicant has reason to

believe that an endangered species or a threatened species may be present in the area

affected by his project and that implementation of such action will likely affect such

species.

(4) Each Federal agency shall confer with the Secretary on any agency action which is

likely to jeopardize the continued existence of any species proposed to be listed under

section 4 or result in the destruction or adverse modification of critical habitat proposed to

be designated for such species. This paragraph does not require a limitation on the

commitment of resources as described in subsection (d).

(b) OPINION OF SECRETARY.-

(1)(A) Consultation under subsection (a)(2) with respect to any agency action shall be

concluded within the 90-day period beginning on the date on which initiated or, subject to

subparagraph (B), within such other period of time as is mutually agreeable to the

Secretary and the Federal agency;

(B) in the case of an agency action involving a permit or license applicant, the Secretary

and the Federal agency may not mutually agree to conclude consultation within a period

exceeding 90 days unless the Secretary, before the close of the 90th day referred to in

subparagraph (A)-

(i) if the consultation period proposed to be agreed to will end before the 150th day

after the date on which consultation was initiated, submits to the applicant a written

statement setting forth-

(I) the reasons why a longer period is required;

(II) the information that is required to complete the consultation; and

(III) the estimated date on which consultation will be completed; or

(ii) if the consultation period proposed to be agreed to will end 150 or more days after

the date on which consultation was initiated, obtains the consent of the applicant to such

period. The Secretary and the Federal agency may mutually agree to extend a consultation

period established under the preceding sentence if the Secretary, before the close of such

period, obtains the consent of the applicant to the extension.

(2) Consultation under subsection (a)(3) shall be concluded within such period as is

agreeable to the Secretary, the Federal agency, and the applicant concerned.

(3)(A) Promptly after conclusion of consultation under paragraph (2) or (3) of subsection

(a), the Secretary shall provide to the Federal agency and the applicant, if any, a written

statement setting forth the Secretary's opinion, and a summary of the information on which

the opinion is based, detailing how the agency action affects the species or its critical

habitat. If jeopardy or adverse modification is found, the Secretary shall suggest those

reasonable and prudent alternatives which he believes would not violate subsection (a)(2)

and can be taken by the Federal agency or applicant in implementing the agency action.

(B) Consultation under subsection (a)(3), and an opinion based by the Secretary incident

to such consultation, regarding an agency action shall be treated respectively as a

consultation under subsection (a)(2), and as an opinion issued after consultation under such

subsection, regarding that action if the Secretary reviews the action before it is commenced

by the Federal agency and finds, and notifies such agency, that no significant changes have

been made with respect to the action and that no significant change has occurred regarding

the information used during the initial consultation.

(4) If after consultation under subsection (a)(2) of this section, the Secretary concludes that-

(A) the agency action will not violate such subsection, or offers reasonable and prudent

alternatives which the Secretary believes would not violate such subsection;

(B) the taking of an endangered species or a threatened species incidental to the agency

action will not violate such subsection; and

taking is authorized pursuant to section 1371(a)(5) of this title; the Secretary shall provide

the Federal agency and the applicant concerned, if any, with a written statement that-

(i) specifies the impact of such incidental taking on the species,

(ii) specifies those reasonable and prudent measures that the Secretary considers

necessary or appropriate to minimize such impact,

(iii) in the case of marine mammals, specifies those measures that are necessary to

comply with section 1371(a)(5) of this title with regard to such taking, and

(iv) sets forth the terms and conditions (including, but not limited to, reporting

requirements) that must be complied with by the Federal agency or applicant (if any), or

both, to implement the measures specified under clauses (ii) and (iii).

(1) To facilitate compliance with the requirements of subsection (a)(2) each Federal

agency shall, with respect to any agency action of such agency for which no contract for

construction has been entered into and for which no construction has begun on the date of

enactment of the Endangered Species Act Amendments of 1978, request of the Secretary

information whether any species which is listed or proposed to be listed may be present in

the area of such proposed action. If the Secretary advises, based on the best scientific and

commercial data available, that such species may be present, such agency shall conduct a

biological assessment for the purpose of identifying any endangered species or threatened

species which is likely to be affected by such action. Such assessment shall be completed

within 180 days after the date on which initiated (or within such other period as is mutually

agreed to by the Secretary and such agency, except that if a permit or license applicant is

involved, the 180-day period may not be extended unless such agency provides the

applicant, before the close of such period, with a written statement setting forth the esti-

mated length of the proposed extension and the reasons therefor) and, before any contract

for construction is entered into and before construction is begun with respect to such

action. Such assessment may be undertaken as part of a Federal agency's compliance with

the requirements of section 102 of the National Environmental Policy Act of 1969 (42

U.S.C. 4332).

(2) Any person who may wish to apply for an exemption under subsection (g) of this

section for that action may conduct a biological assessment to identify any endangered

species or threatened species which is likely to be affected by such action. Any such bio-

logical assessment must, however, be conducted in cooperation with the Secretary and

under the supervision of the appropriate Federal agency.

(d) LIMITATION ON COMMITMENT OF RESOURCES.-After initiation of

consultation required under subsection (a)(2), the Federal agency and the permit or license

applicant shall not make any irreversible or irretrievable commitment of resources with

respect to the agency action which has the effect of foreclosing the formulation or

implementation of any reasonable and prudent alternative measures which would not violate

subsection (a)(2).

(e)(1) ESTABLISHMENT OF COMMITTEE.-There is established a committee to be

known as the Endangered Species Committee (hereinafter in this section referred to as the

"Committee").

(2) The Committee shall review any application submitted to it pursuant to this section

and determine in accordance with subsection (h) of this section whether or not to grant an

exemption from the requirements of subsection (a)(2) of this action for the action set forth

in such application.

(3) The Committee shall be composed of seven members as follows:

(A) The Secretary of Agriculture.

(B) The Secretary of the Army.

(D) The Administrator of the Environmental Protection Agency. Agency.

(E) The Secretary of the Interior.

(F) The Administrator of the National Oceanic and Atmospheric Administration.

(G) The President, after consideration of any recommendations received pursuant to

subsection (g)(2)(B) shall appoint one individual from each affected State, as determined by

the Secretary, to be a member of the Committee for the consideration of the application for

exemption for an agency action with respect to which such recommendations are made, not

later than 30 days after an application is submitted pursuant to this section.

(4)(A) Members of the Committee shall receive no additional pay on account of their

service on the Committee.

(B) While away from their homes or regular places of business in the performance of

services for the Committee, members of the Committee shall be allowed travel expenses,

including per diem in lieu of subsistence, in the same manner as persons employed inter-

mittently in the Government service are allowed expenses under section 5703 of title 5 of

the United States Code.

(5)(A) Five members of the Committee or their representatives shall constitute a quorum

for the transaction of any function of the Committee, except that, in no case shall any

representative be considered in determining the existence of a quorum for the transaction of

any function of the Committee if that function involves a vote by the Committee on any

matter before the Committee.

(B) The Secretary of the Interior shall be the Chairman of the Committee.

(D) All meetings and records of the Committee shall be open to the public.

(6) Upon request of the Committee, the head of any Federal agency is authorized to

detail, on a nonreimbursable basis, any of the personnel of such agency to the Committee

to assist it in carrying out its duties under this section.

(7)(A) The Committee may for the purpose of carrying out its duties under this section

hold such hearings, sit and act at such times and places, take such testimony, and receive

such evidence,

as the Committee deems advisable.

(B) When so authorized by the Committee, any member or agent of the Committee may

take any action which the Committee is authorized to take by this paragraph.

agency information necessary to enable it to carry out its duties under this section. Upon

request of the Chairman of the Committee, the head of such Federal agency shall furnish

such information to the Committee.

(D) The Committee may use the United States mails in the same manner and upon the

same conditions as a Federal agency.

(E) The Administrator of General Services shall provide to the Committee on a

reimbursable basis such administrative support services as the Committee may request.

(8) In carrying out its duties under this section, the Committee may promulgate and

amend such rules, regulations, and procedures, and issue and amend such orders as it

deems necessary.

(9) For the purpose of obtaining information necessary for the consideration of an

application for an exemption under this section the Committee may issue subpoenas for the

attendance and testimony of witnesses and the production of relevant papers, books, and

documents.

(10) In no case shall any representative, including a representative of a member

designated pursuant to paragraph (3)(G) of this subsection, be eligible to cast a vote on

behalf of any member.

(f) REGULATIONS.-Not later than 90 days after the date of enactment of the Endangered

Species Act Amendments of 1978, the Secretary shall promulgate regulations which set

forth the form and manner in which applications for exemption shall be submitted to the

Secretary and the information to be contained in such applications. Such regulations shall

require that information submitted in an application by the head of any Federal agency with

respect to any agency action include but not be limited to-

(1) a description of the consultation process carried out pursuant to subsection (a)(2) of

this section between the head of the Federal agency and the Secretary; and

(2) a statement describing why such action cannot be altered or modified to conform with

the requirements of subsection (a)(2) of this section.

(g) APPLICATION FOR EXEMPTION AND REPORT TO THE COMMITTEE.-

(1) A Federal agency, the Governor of the State in which an agency action will occur, if

any, or a permit or license applicant may apply to the Secretary for an exemption for an

agency action of such agency if, after consultation under subsection (a)(2), the Secretary's

opinion under subsection (b) indicates that the agency action would violate subsection

(a)(2). An application for an exemption shall be considered initially by the Secretary in the

manner provided for in this subsection, and shall be considered by the Committee for a

final determination under subsection (h) after a report is made pursuant to paragraph (5).

The applicant for an exemption shall be referred to as the "exemption applicant" in this

section.

(2)(A) An exemption applicant shall submit a written application to the Secretary, in a

form prescribed under subsection (f), not later than 90 days after the completion of the

consultation process; except that, in the case of any agency action involving a permit or

license applicant, such application shall be submitted not later than 90 days after the date

on which the Federal agency concerned takes final agency action with respect to the

issuance of the permit or license. For purposes of the preceding sentence, the term "final

agency action" means (i) a disposition by an agency with respect to the issuance of a permit

or license that is subject to administrative review, whether or not such disposition is subject

to judicial review; or (ii) if administrative review is sought with respect to such disposition,

the decision resulting after such review. Such application shall set forth the reasons why

the exemption applicant considers that the agency action meets the requirements for an

exemption under this subsection.

(B) Upon receipt of an application for exemption for an agency action under paragraph

(1), the Secretary shall promptly

(i) notify the Governor of each affected State, if any, as determined by the Secretary,

and request the Governors so notified to recommend individuals to be appointed to the

Endangered Species Committee for consideration of such application; and

(ii) publish notice of receipt of the application in the Federal Register, including a

summary of the information contained in the application and a description of the agency

action with respect to which the application for exemption has been filed.

(3) The Secretary shall within 20 days after the receipt of an application for exemption,

or within such other period of time as is mutually agreeable to the exemption applicant and

the Secretary

(A) determine that the Federal agency concerned and the exemption applicant have-

(i) carried out the consultation responsibilities described in subsection (a) in good faith

and made a reasonable and responsible effort to develop and fairly consider modifications

or reasonable and prudent alternatives to the proposed agency action which would not

violate subsection (a)(2);

(ii) conducted any biological assessment required by subsection (c); and

(iii) to the extent determinable within the time provided herein, refrained from making

any irreversible or irretrievable commitment of resources prohibited by subsection (d); or

(B) deny the application for exemption because the Federal agency concerned or the

exemption applicant have not met the requirements set forth in subparagraph (A) (i), (ii),

and (iii).

The denial of an application under subparagraph (B) shall be considered final agency action

for purposes of chapter 7 of title 5, United States Code.

(4) If the Secretary determines that the Federal agency concerned and the exemption

applicant have met the requirements set forth in paragraph (3)(A) (i), (ii) and (iii) he shall,

in consultation with the Members of the Committee, hold a hearing on the application for

exemption in accordance with sections 554, 555, and 556 (other than subsection (b) (1) and

(2) thereof) of title 5, United States Code, and prepare the report to be submitted pursuant

to paragraph (5).

(5) Within 140 days after making the determinations under paragraph (3) or within such

other period of time as is mutually agreeable to the exemption applicant and the Secretary,

the Secretary shall submit to the Committee a report discussing-

(A) the availability of reasonable and prudent alternatives to the agency action, and the

nature and extent of the benefits of the agency action and of alternative courses of action

consistent with conserving the species of the critical habitat;

(B) a summary of the evidence concerning whether or not the agency action is in the

public interest and is of national or regional significance;

considered by the Committee; and

(D) whether the Federal agency concerned and the exemption applicant refrained from

making any irreversible or irretrievable commitment of resources prohibited by subsection

(d).

(6) To the extent practicable within the time required for action under subsection (g) of

this section, and except to the extent inconsistent with the requirements of this section, the

consideration of any application for an exemption under this section and the conduct of any

hearing under this subsection shall be in accordance with sections 554, 555, and 556 (other

than subsection (b)(3) of section 556) of title 5, United States Code.

(7) Upon request of the Secretary, the head of any Federal agency is authorized to detail,

on a nonreimbursable basis, any of the personnel of such agency to the Secretary to assist

him in carrying out his duties under this section.

Endangered Species Act of 1973

ESA SECTION HEADINGS

FINDINGS, PURPOSES, AND POLICY

SEC. 2.

DEFINITIONS

SEC. 3.

DETERMINATION OF ENDANGERED SPECIES AND THREATENED SPECIES

Sec. 4.

LAND ACQUISITION

SEC. 5.

COOPERATION WITH THE STATES

SEC. 6.

INTERAGENCY COOPERATION

SEC. 7.

DETERMINATION OF ENDANGERED SPECIES AND
THREATENED SPECIES